TMI Blog2011 (1) TMI 297X X X X Extracts X X X X X X X X Extracts X X X X ..... ir intimacy with the smuggling racket and proved their deal in the smuggled goods - Statement recorded from them as well as smuggling racket unmistakably disclosed their identity and destination of the offending goods arrived at the IGI Airport and cleared making evasion of customs duty - Other than the arguments, no logical reasons could be shown to us to infer dissociation of the trader appellants from the charge - When the proof of transport of the offending goods established destination thereof and disposal of the offending goods by trader appellant there remained no doubt to bring these appellants to charge –Penalty on revenue officers confirmed - Thus all their appeals being devoid of merit are dismissed. - C/775-776/2007, C/1, 4, 7, 11-13, 15-19, 48, 59-78/2008 , C/89/2008 - C/50-84/2011(PB) - Dated:- 25-1-2011 - S/Shri D.N. Panda, Rakesh Kumar, JJ. REPRESENTED BY : S/Shri L.P. Asthana, with J.P. Kaushik, V.R. Sethi, Shailendra Bharadwaj, Bipin Garg, Piyush Kumar and Balbir Singh, Advocates, for the Assessee. Shri Sumit Kumar, DR, for the Department. [Order per : D.N. Panda, Member (J)]. - This batch of thirty five (35) appeals depicted in Tables - A - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Sanak Khan C-75/2008 None -do- 17. Zanjir Khan C-76/2008 None -do- 18. Sadullah C-77/2008 None -do- 19. Naseem C-78/2008 None -do- 1.2 Following 8 (Eight) Custom Officers appearing in TABLE - C and TABLE - D below being aggrieved by order of adjudication have come in appeal and Revenue is in Cross Appeal No. C/73/2008 only against appeal of Shri Madan who is in Appeal No. C-07/2008: TABLE - C APPEALS FILED BY OFFICERS OF CUSTOMS Sl. No APPELLANTS APPEAL NO. Appearance for Appellants Appearance for Revenue 20. Sudhir Sharma C-775/2007 Mr. L. P. Asthana Mr. Sumit Kumar 21. Ajay Yadav C-776/2007 Mr. J.P. Kaushik V. R. Sethi -do- 22. Yash Pal C-01/2008 Mr. L. P. Asthana -do- 23. T.R.K. Reddy C-04/2008 Mr. L. P. Asthana -do- 24. R. N. Zutshi C-19/2008 Mr. Bipin Garg -do- 25. V. K. Khurana C-48/2008 Mr. Prem Ranjan Kumar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le - 1 to the impugned order on different dates including the import of 28-8-2000 as depicted in Col. 1 thereof of the corresponding quantity and value appearing in Col. 3 and 4 of the said Table in contravention of provisions of Customs Act, 1962 (hereinafter referred to as the Act ), evading Customs duty to the extent mentioned in Col. 5 of Table - 1 misdeclaring both quantity and value thereof. Such acts not only invited consequences of confiscation and levy of duty followed by interest in appropriate cases but also warranted imposition penalties of the quantum specified in Col. 6 of Table - 1, u/s 114A of the Act. For convenience of reference, Table - 1 appearing at page 310 to the impugned order is reproduced below : TABLE-1 (Ref. Page 310 of O-I-O) Date on which silk fabrics were illegally imported and cleared without declaration Names of the passengers who evaded prohibitions and duty jointly or severally Quantity in Metres of silk fabrics notdeclared not assessed on the said date Value of silk fabrics not declared and not assessed on the said date. (in Rupees) Amount of customs duty evaded by the passengers as shown in co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... zireva Nazira I. 22668 1541424 9.43,351/- 9,43,351/- 14-8-2000 Merkulova 18496 1257755 7,69,746/- 7,69,746/- 18-8-2000 Nazira I 6410 435880 2,66,759/- 2,66,759/- 21-8-2000 Merkulova L. 31425 2136878 13,07,769/- 13,07,769/- FOLLOWING IMPORT DOES NOT APPEAR IN TABLE - 1 ALTHOUGH APPEARS IN TABLE -14 AT PAGE 176 OF O-I-O 22-5-2000 Olga Nazira I and Shahlo A 18296 1244155 7,61,423 NOT LEVIED 1.5 The Officers whose name appear in TABLE - C and D to this order were found to have connived and abetted smuggling activities on the respective dates noted against each were penalised in adjudication as depicted in the Table -2 to the impugned order appearing at Page 312 thereof. The said Table is reproduced below for convenience of reference : TABLE-2 (Ref. Page 312 of O-I-O) Date on which silk fabrics were illegally imported and cleared without declaration Names of the persons who aided and abetted the acts of omission commi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 24-7-2000 Dil Agha, Mamoor Khan, RN Zutshi, TRK Reddy, Anil Madan 25630 1742840 10,66,618/- Rs. 2,50,000/- on each 27-7-2000 Dil Agha, Mamoor Khan, VK Khurana 2467 5991 167742 407374 1,02,658/-2,49,313/- Rs. 75,000/- on each 31-7-2000 Dil Agha, Mamoor Khan, VK Khurana, Nazira I. 26194 1781219 10,90,106/- Rs. 2,50,000/- on each 1-8-2000 Dil Agha, Mamoor Khan, VK Khurana RN Zutshi, Nazira I 5419 5638 368519 383411 2,25,534/-2,34,648/- Rs. 1,00,000/- on each 4-8-2000 Dil Agha, Mamoor Khan, VK Khurna 4934 6040 335485 410744 2,05,317/-2,51,376/- Rs. 1,00,000/- on each 11th/12th Aug. 2000 Dil Agha, Mamoor Khan, Pradeep Rana 22668 1541424 9,43,351/- Rs. 2,00,000/- on each 14-8-2000 Dil Agha, Mamoor Khan, Olga Kozireva, Nazira I Pardeep Rana 18496 1257755 7,69,746/- Rs. 1,75,000/- on each 18-8-2000 Dil Agha, Mamoor Khan, Pardeep Rana, Olga K. 6410 435880 2,66,759/- Rs. 75,000/- on eac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ictions imposed thereon under para 5.6 of the Export Import Policy 1997-2002 read with section 3(2) and 3(3) and 11(1) of the Foreign Trade (Development and Regulation) Act, 1992 read with section 14 of the Foreign Trade (Regulation) Rules, 1993 read with section 11 of the Customs Act, 1962, thereby rendering the said silk textiles liable to confiscation under section 111(d) of the Customs Act, 1962. (4) The part, of the seized silk textiles, of 35446 metres weighing 2011.7 kg and valued at Rs. 2410338 which was not mentioned in the passenger manifest of flight K2 545 by Kyrgyzstan Airlines was liable to confiscation under section 111(f) of the Customs Act, 1962. (5) The offending goods seized on 28-8-2000 were illegally imported into India by Ms. Olga Kozireva resorting to collusion, wilful mis-statement and suppression of facts in fraudulent attempt to cause evasion of Customs duty Rs. 30,88,407/- leviable thereon. (6) Dil Agha Mamoor Khan, Sanak Khan, Sadullah, Zanjir Khan, Naseem, VK Khurana and Nazira conspired and colluded with Ms. Olga Kozireva and abetted in her acts and omissions which rendered the aforesaid seized silk textiles liable to confiscation und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of the receipt or display on notice board of the show cause notice, to the Commissioner of Customs (General); New Customs House, New Delhi (the adjudicating authority) as to why : (a) Silk textiles, consisting of 64489 metres weighing 3660 kg of assessable value Rs. 4385266 on 10-4-2000, 22-5-2000 and 14-8-2000, the part of the silk textiles, consisting of 35998 metres and weighing 2043 kg and valued at Rs. 2447841, on 17-7-2000 and 21-8-2000 and the part, of the seized silk textiles, of 35446 metres weighing 2011.7 kg and valued at Rs. 2410338, on 28-8-2000, illegally imported into India without being mentioned in the passenger manifests of flight K2-545 should not be confiscated under section 111(f) of the Customs Act, 1962. (b) Penalty should not be imposed upon them under section 112(a) of the Customs Act, 1962. 2.6 Consequence of illegal import of 28-8-2000 : (i) Silk fabrics measuring 81160 yards [74212 metres] valued at Rs. 50,46,416/- [assessable value] illegally imported by Ms. Olga Kozireva on 28-8-2000 evading Customs duty of Rs. 30,88,406/- attempted to be cleared under mis declaration and in violation of prohibitions/ restrictions imposed thereon under para ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... read with section II of the Customs Act, 1962, thereby rendering the said silk textiles liable to confiscation under section 111(d) of the Customs Act, 1962. (3) 3,660 kg of baggage consisting of 64489 meters of silk textiles of assessable value Rs. 4385266 imported on 10-4-2000, 25-5-2000 and 14-8-2000 and a part of the silk textiles, consisting of 35998 meters and weighing 2043 kg and valued at Rs. 244,7841, imported on 17-7-2000 and 21-8-2000, were illegally imported into India without being mentioned in the passenger manifest of flight K2-545 by Kyrgyzstan Airlines, were thereby rendered liable to confiscation under section 111(f) of the Customs Act, 1962. (4) The quantity of silk textiles mentioned in column B of Table 14 were illegally imported into India in fraudulent evasion of customs duty amounts as mentioned in column D of the said Table on the dates shown in column A thereof by the persons mentioned in column E, resorting to collusion, wilful mis-statement and, suppression of facts. Such customs duty were liable to be paid by the persons mentioned in column E of table 14, under the provisions of section 28 of the Customs Act, 1962, along with interest payable thereo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alue mentioned in column C of Table 14 to SCN which were illegally imported on the dates/flights mentioned in column A thereof should not be held liable to confiscation under section 111(d) and (1) of the Customs Act, 1962, as applicable. (ii) The amount of duty evaded as mentioned in column D on the dates mentioned in column A of Table 14 to SCN should not be demanded from her/them under the provisions of section 28(1) of the Customs Act, 1962 read with the proviso thereto, along with interest thereon under section 28 AB of the Customs Act, 1962. (iii) Penalty should not be imposed on her/them under section 112(a) and (b) or 114A of the Customs Act, 1962. 2.9 Person(s) mentioned in column F of Table 14 to SCN were called upon to show cause, within 30 days of the receipt or display on notice board of the show cause notice, to the Commissioner of Customs (General), New Customs House, New Delhi (the adjudicating authority) as to why penalty should not be imposed on them under section 112(a) and (b) of the Customs Act, 1962. 2.10Consequences of illegal imports prior to 28-8-2000 (i) Goods mentioned in column 3 of the Table-1 appearing at Page 310 of the impugned order, illeg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Fit Silk Tex.-not decl. and not assd. In meters Value of silkTex.Not decl. and not assd. In Rs. Customs duty evaded Person who, jointly or severally, evaded duty and prohibition Person who abetted Persons concerned with dealing with the goods. A B C D E F G 17-12-98 KGA 2003 11338 771007 619659 Olga K, Nazira I and Shakista K Not know Not know 17-9-99 PK814 4546 309125 189185 Olga K Not know Not know 1-2-2000 KGA200 1 22272 1514474 926858 Shakista K Kamal Bajaj, Mamoor Khan, Sanak Nitish Kedia, Anup Singh, Khem Singh, Arun Dokania, Gopal Dokania, Sanjiv Jain, Mahender Jain, Anudeep Singh 27-2-00 HY 151 26159 1778785 1088616 Olga K and Shakista K Mamoor Klldll, TRK Reddy VS Teotia Parveen Teotia JA Khan VK Khurana Ajay yadav Nitish Kedia, Anup Singh, Khem Singh, Arun Dokania, Gopal Dokania, Sanjiv Jain, Mahender Jain, Anudeep Singh 10-4-00K2545 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Singh, Khem Singh, Arun Dokania, Gopal Dokania, Sanjiv Jain, Mahender Jain, Anudeep Singh -7-00 9Y 219 14448 982491 601285 Olga K Mamoor Khan, Sanak, Yashpal Nitish Kedia, Anup Singh, Khem Singh, Arun Dokania, Gopal Dokania, Sanjiv Jain, Mahender Jain, Anudeep Singh 10-7-00K2545 21496 1461755 894594 Olga K Mamoor Khan, Sanak, Vinod Kumar, RN Zutshi, VS Teotia, RK Dacoliya, AK Varshney DS Nandal Nitish Kedia, Anup Singh, Khem Singh, Arun Dokania, Gopal Dokania, Sanjiv Jain, Mahender Jain, Anudeep Singh 17-7-2000 K-2 545 32654 2220450 1358916 Nazira I Mamoor Khan, Sanak, TRK Reddy Kozireva# #not pax but at air oport with flight Nitish Kedia, Anup Singh, Khem Singh, Arun Dokania, Gopal Dokania, Sanjiv Jain, Mahender Jain, Anudeep Singh 24-7-2000 K-2 545 25630 1742840 1066618 Merkulova L Dil Agha Mamoor Khan, Sanak Sadullah Zanjir KhanTRK Reddy, RN Zutshi, Yashvir Singh Kozirev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a I Dil Agha, Mamoor Khan, Sadullah, Zanjir Khan, Olga K, Pradeep Rana, SA Lamb, VK Bhardwaj Nitish Kedia, Anup Singh, Khem Singh, ArunDokania, GopalDokania, Sanjiv Jain, Mahender Jain, Anudeep Singh 21-8-2000 K-2 545 31425 2136878 1307759 Merkulova L Dil Agha, Mamoor Khan, Sanak Sadullah, Zanjir Khan, R.N. Zutshi, Olga K*, Nazira*, *not passenger but assessed. Nitish Kedia, Anup Singh, Khem Singh, ArunDokania, GopalDokania, Sanjiv Jain, Mahender Jain, Anudeep Singh Total 421245 28644640 17578322 (v) Penalties of Rs. 5,00,000/- (Rupees five lakhs) each were levied on Nitish Kedia (Notice No. 26), Anupdeep Singh (Noticee No. 27), Khem Singh (Noticee No. 28), Arun Dokania (Noticee No. 29), Gopal Dokania (Noticee No. 30), Mohinder Jain (Noticee No. 31), Sanjeev Jain (Noticee No. 32) and Anupdeep Singh (Noticee No. 33) u/s. 112(b) of the Customs Act, 1962 for acquiring possession of and concerning themselves in purchasing, keeping, selling and dealing with the offending goods which they kne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aided abetted the acts of commission and omission allegedly committed by them? And whether they were knowingly concerned with carrying, removing, transporting, keeping, selling and otherwise dealing with the said imported goods which they knew and had reason to believe were liable to confiscation and whether they rendered themselves liable to penal action under the provisions of Section 112(a) and 112(b)? All the issues were answered in favour of Revenue and consequence under law flowed. Investigation and adjudication observations and findings 4. In the course of search and seizure made on 28-8-2000 and investigation made in respect of illicit imports made on different occasions prior to that date, Investigating officers found that various persons, concerns, traders and few Customs Officers were involved and connected with such imports and they had abetted and aided such imports as tabulated in Table-2 of Order in Original at page 312-314 thereof to make the offending goods to reach successfully at the destination thereof for trading for which they faced consequences of law. Investigation scrutinised various documents, papers and records and recorded statements from severa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of such basis was made to the clearances made on different dates prior to 28-8-2000. The weight and value of smuggled goods determined by learned Adjudicating Authority remained uncontroverted. 4.4 Ld. Adjudicating authority thoroughly examined the statement recorded from one Dil Agha, who introduced himself to Mr. R.N. Zutshi, an officer of Customs who is an appellant in the present batch of appeals appearing in TABLE - C to this order as Mamoor Khan s brother because Mamoor Khan left India on 22-7-2000 and from that date, Dil Agha was conducting smuggling operation. Dil Agha confirmed that he was present on 28-8-2000 at the Airport to take delivery of the offending goods brought by Ms. Olga and Gulia on that day. He contacted to a Mobile number given to him by Sadullah and enquired about that baggage and came to know that such baggage would come out. But when the offending goods came out and he attempted to take delivery thereof, that was intercepted by customs authorities and Dil Agha was taken for interrogation. 4.5 Learned Adjudicating Authority found that when Dil Agha was examined on 12-7-2001, he narrated about 27 baggage brought by Ms. Olga. He confirmed his st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... described how the Officers of Customs posted at International Airport were instrumental for clearance of offending goods accepted illegal gratification from offending passengers like Olga K., Nazira I., Shakishta K. Shahlo A. etc. who were illegally importing offending goods i.e. silk fabrics. Although Sri Zutshi, retracted his statement dated 17th Jan., 2001 by a letter dated 19th Jan. 2001 stating the same to be not voluntary and was tendered under pressure and coercion of the investigating officers that was not established by him. The letter of retraction was addressed to the Commissioner of Customs (General)/ New Customs House, New Delhi instead of being sent to DRI. However, the letter of retraction was forwarded to the Addl. Director, DRI under a covering letter dated 19-2-2001 acknowledged by that Authority on 20th Feb., 2001. (B) According to learned Adjudicating Authority when Officers of DRI recorded the statement of Shri Zutshi, the reason why letter of retraction was addressed to the Commissioner of Customs (Gen.) instead of being addressed to ADG or DG, DRI became mystery. It was found from para 80 of the SCN that letter of retraction was claimed to have been r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... judicating Authority held that Sri Zutshi made vague insinuations like he was threatened that he would be implicated in fake case by the officers and that they would go to any extent to harm him were in the nature of after-thought plea. Ld. Adjudicating Authority relied on the decision in the case of Ratlam Wires Pvt. Ltd. v. CESTAT, New Delhi reported as 2004 (174) E.L.T. 154 (MP) to support his decision and plea of retraction was discarded. According to ld. Adjudicating Authority, in Roop Kala Export Corporation v. UOI reported as 2004 (165) E.L.T. 26 (Bom.), the Hon ble Bombay High Court held that retraction on the basis of vague protest that statements were taken under duress was an after thought and not bona fide. Accordingly, the letter of retraction of Sri Zutshi was held by learned Adjudicating Authority to be engineered and deposition originally made by him was held to be voluntary being recorded without any pressure or threat. (E) Ld. Adjudicating Authority also relied on the judgement of Hon ble Supreme Court in the case of Naresh J. Sukhwani v. UOI reported as 1996 (83) E.L.T. 258 (S.C.) wherein the Apex Court held that the statement made before the Customs officer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r who corroborated by his statements dated 17th Dec, 2000, 18th Dec, 2000 and 22nd Dec, 2000 after seeing Mamoor Khan s photograph. It was established that Mamoor Khan was involved in import and transportation of silk fabrics by Uzbeki ladies from IGI Airport. Pawan Kumar tendered statement from his personal knowledge because he (Pawan Kumar) was actively involved in transportation of baggage imported illegally by Uzbeki ladies. The fact of Mamoor Khan staying at Sameer Guest House in Ballimaran, Delhi was also confirmed by Abdul Qayum, Manager, and Sameer Guest House who also identified that Mobile No. 9811254485 belonged to Mamoor Khan. He tendered evidence after identifying the photographs of Mamoor Khan. As is apparent from Para 42 of SCN, Abdul Qayum also stated the telephone numbers and other details regarding involvement of Mamoor Khan. (G) Involvement of Mamoor Khan in smuggling was confirmed by Ajay Dhiman, Traffic Supervisor, Kyrgyzstan Airlines in his statements dated 26-12-2000, 30-12-2000 and 1st Feb., 2001. He also identified Mobile No. 9811135982 as belonging to Mamoor Khan. The involvement of Mamoor Khan in illegal import of Chinese silk fabrics was confirmed b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Khan and Dil Agha on one hand and the regular passenger like Olga K. Gulia etc. on the other hand as well as the Customs Officers. The association between Dil Agha and Mamoor Khan was also confirmed by Abdul Qayum, Manager of Sameer Guest House, Ballimaran, Delhi, in his statement dated 29th Dec. 2000. Further statements of Dii Agha recorded on 11th July, 2001, 12th July, 2001, 25-7-2001 revealed his own involvement as well as involvement of certain other individuals like Sadullah, Zanzeer Khan Sanak etc. He also confirmed involvement of certain Customs officers and his money dealings with them for clearance of illicit imports. Involvement of Dil Agha was also confirmed by Pawan Kumar, driver of Sehrawat Goods Carrier, Abdul Qayum, Manager, Sameer Guest House, Ajay Dhiman, Traffic Supervisor, Kyrgyzstan Airlines, Pradeep Singh Dhamija, Gopal Prasad Dokania, Nitish Kumar Kedia and Anudeep Singh in their statements recorded under Section 108 of the Customs Act, 1962 on various dates. In fact, many of them also confirmed mobile and landline telephone numbers of Dil Agha. Evaluation of plethora of evidences gave rise to logical conclusion that Dil Agha had a key role in smuggling of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e time adjudication was made, it was not possible to allow cross-examination for the vague plea raised. He followed the judgment of the Hon ble Supreme Court in the case of Kanungo and Co. v. Collector of Customs, Calcutta - 1983 (13) E.L.T. 1486 (S.C.) in this regard and held that asking for cross-examination was not a matter of right. 4.9 There were also pleas by some of the appellants to provide them copy of Disembarkation Card. Ld. Adjudicating Authority observed that Disembarkation Card generally contains the details of declaration made by the passenger on arrival at the Airport about the packages, description, quantity and value of the dutiable carriage carried by them. That is usually not signed by the passenger. It was found by that Authority that the Disembarkation Card was not relied upon by the investigation for making allegation in the notice. Therefore, it was not obligatory on his part to supply copy of such document which were not relied for levelling charge against the appellants. Consequently, request of supply of such document was denied. 4.10 Ld. Adjudicating Authority in para 420 of the impugned order came to the conclusion that the proceeding before him was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... denied that he had purchased silk fabrics from him. (5) Anup Singh in his statement dated 1st June, 2001 admitted that he knew Mamoor Khan and Dil Agha but did not deal with them for purchase of silk fabrics. (6) Mahender Jain in his statements dated 19th Jan. 2001 1st Feb., 2001 admitted that he knew Mamoor Khan but denied to had any dealing related to silk fabrics. 5.2 Testimony of Abdul Qahar suggested that the trader appellants were aware of the illegal activities of Ms. Olga K. and her associates. Examination and evaluation of the telephonic contacts exhibited by Table No. 10 11 to SCN threw light on such aspect. They were regularly in touch with Mamoor Khan and Dil Agha on their Mobile No. 9811135921 and 9811065897 respectively. Number of calls exchanged were indeed very large and ran into hundred of calls, as evident from Table No. 10 to SCN. The appellants did not deny such contacts but admitted dealing with Khan for purchase of silk textiles. The significance of Table No. 11 to SCN was that these traders were in touch with Mamoor Khan, Dil Agha and passengers on the date when they actually arrived in India with their heavy baggage. For example, when Ms. O ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch Import Manifest refers to the Cargo Manifest and not the Passenger Manifest which was relied upon document in adjudication. In any case, the act of wrong recording of weight of baggage took place in Bishkek and not in the territory of India. Under such circumstances, learned Adjudicating Authority held that issuance of SCN to Kyrgyzstan Airlines was a futile exercise and proceeding against Kyrgyzstan Airlines was thus dropped by him. Adjudication observations and findings against Sanak Khan Zanjeer Khan and Sadullah Naseem 5.4 Ld. Adjudicating Authority examined the case of Sanak Khan, Zanjir Khan, Sadullah Naseem in para 553 and 554 of the impugned order. According to that Authority, Sanak Khan appeared like a fictional character who was not seen by any one and there was no evidence to suggest that they ever came to India. The allegation they were abettor because Dil Agha spoke to Sanak Khan on his telephone number on 28th August, 2000, does not itself constitute offence and no illegal action or omission were attributed to Sanak Khan in the territory of India. Similarly, it was held in adjudication that there was no evidence existed against Zanjeer Khan. They were the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ers were found to be abettor of the offence committed under Customs Act, 1962 on past occasions including the event of 28-8-2000. 6.3The entire design against Revenue and mala fide of the Respondent officers came to lime-light on the date when seizure of the offending goods occurred on 28-8-2000. The illicit imports were corroborated by transport of offending goods to reach to the trader appellants. The transporter brought nexus of conspirators, Respondent Officers and offender passenger who were illegally importing the offending goods. Not only temporary stay of the passengers bringing the offending goods was established on record, but also the deal of such passengers with various buyers in connivance with the officers of Customs came to record. Revenue gathered information from different airlines of Pakistan, Kyrgyzstan and Uzbekistan about transportation of offending goods. Breach of law was established. Import manifesto proved arrival of the offending goods on different occasions. The Airline abetted transporting of the offending goods booked by the offender passengers from abroad. The offending goods illegally imported in past escaped seizure and confiscation deliberately fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat when there was no basis to level charges u/s 111 of Customs Act, 1962 to render the goods confiscable and these 14 officers were not contributory to the same, they cannot be brought under Section 112(a) of the Customs Act, 1962. Similarly, Section 112(b) also does not impose any penalty in absence of the elements of that sub-section in respect of 14 officers. It cannot be pleaded by Revenue that the learned Commissioner has not examined any evidence on record when he has passed a speaking and reasoned order. When he did not find that any direct evidence exists to suggest that these 14 Respondent Officers caused loss to revenue, they were exonerated from charges. 6.7 According to Learned Counsel, the principal offender Ms. Olga Kozireva had never uttered names of these 14 officers. Similarly none of the other co-noticees had ever uttered name of these officers nor did anybody state that these officers had made any deal with them with any ill will. Revenue s own witnesses did not utter the name of these officers Shri Zutshi claimed to be most valuable witness for revenue did not speak against these officers. Even the statement recorded from Dil Agha and Abdul Qahar was very wel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cause notice. Precisely, he supported the order of the learned Adjudicating Authority and submitted that when these 14 officers were found to be innocent by that Authority, they cannot be implicated by fake pleas without any evidence. He further submitted that suspicion however grave may be cannot be substitute of proof. Reading the statement of facts of Revenue in the appeal folder, learned Counsel submitted that findings and the factual aspects dealt by the learned Commissioner remained un-controverted by Revenue even in their appeal memo. Revenue has mere challenged Adjudication Order without submitting the actual findings and evidence relied upon by Adjudicating Authority. 6.10 Shri Piyush Kumar further argued that when revenue failed to bring direct evidence against these 14 officers to prove their nexus with the seizure, they cannot be deterrently dealt under law on mere surmise or suspicion. No surrounding circumstances also proved against them. The pleadings of Revenue are not supported by appeal memo for which the pleadings suffers from grave error. There was no appeal filed by Revenue against Ms. Olga [page 288 of order-in-original] this proves that Revenue has prejudge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the offending goods having been allowed by them to escape scrutiny of customs and, such goods being liable to confiscation, these officers were conduits in commitment of the offence and are liable to penalty under law. (3) Smuggled goods having been found by Investigation to have reached destination thereof that proved escapement of the offending goods with the aid and abetment of these Officers. (4) Offender passengers were unduly benefited at the cost of Revenue by the Respondent Officers and also the intermediaries of smuggling were similarly benefited hatching conspiracy with this Officer to cause subterfuge to Revenue. (5) Baggage profile, manifesto details, mobile numbers and telephone print outs were the cogent evidence against the Respondent Officers who proved their mala fide. (6) They were not dealt suspiciously by Investigation. But full proof against them led the way for investigation and to issuance of show cause notice. Learned Commissioner hastily dealt the evidence and absolved these officers from penal consequences of law for no rhyme or reason. (7) Modus operandi by these Officers was designed scientifically to exit the offending goo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the offending goods. Even the statement recorded from Ms. Olga Kozireva itself proved the modus operandi of the four organisers of the smuggling including the Airline. When the Department proceeded with the enquiry through the UNHCR and Home Department, the offenders were brought to record with full proof evidence as to their hands in glove as well as their active participation proved. Ms. Olga and party have proved their involvement in the smuggling staying in Samir Guest House and Hotel Yes Please. At these places, offending goods were stored and dealt through different buyers being transported from Air Port to these places. The buyers were in Chandni Chowk. Their evidence recorded went against the organisers as well as other smuggling perpetrators who became noticees in the show cause notice. The Airline proved without any doubt about transportation of the offending which escaped duty by 14 officers of Customs and others. Statement of Shri Nathu Lal recorded on various dates confirmed that the passengers Ms. Olga and party were the offender passengers who were involved in the smuggling racket to commit the smuggling on various dates. The goods brought by these passengers were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts ultimate destination at Chandni Chowk, proved against all the officers. CUSTOMS APPEAL NO. C - 775/2007 8. Submissions on behalf of appellant - Sudhir Sharma 8.1 Ld. Counsel Shri Asthana appearing on behalf of the Appellant Shri Sudhir Sharma in Appeal Case No. - C/775/07, submitted that there was penalty of Rs. 4.75 lakhs imposed on this Appellant. He was engaged as protocol officer, Supdt. (Baggage) on 10-4-2000, 22-5-2000 and 1-7-2000. He filed a date chart/duty chart relating to the Appellant for all these three dates appearing at page 1, 22 and page 31 of the paper book submitted on 26-5-2009. In respect of the events occurred on all these three dates, he also submitted orders of adjudication appearing at page 4, 25 and 36 of that paper book. According to him these documents demonstrate that the Appellants Shri Sudhir Sharma was not implicated in the adjudication of those dates since the adjudications were plain and simple. The adjudication brought out the passenger who carried the mis-declared goods in respect of the quantity and value for which adjudication was made. 8.2 Sri Asthana submitted that Sri Sharma was not on duty on 28-8-2000. Therefore for the event o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lant by any subsequent event of 28-8-2000. 8.6 Shri Asthana further submitted that the officers who were engaged in preventive area of the Customs station on the aforesaid dates were not brought to record by the show cause notice. The Authorities have prejudiced the appellant without any direct nexus or evidence against him. There was pick and choose method followed by the Authorities. There was nothing incriminating materials on record on the aforesaid three days against the Appellant in respect of the clearances of the goods on those days. The Appellant had discharged his duty properly on all the days. Because some materials came to notice of Investigation that shall not ipso facto implicate the appellant. Adjudication for the aforesaid three days was done confining such adjudication to the facts and circumstances of the cases of those days. Shri Asthana submitted that when those three adjudications have reached finality without any appeal and that related to the period prior to 28-8-2000, without re-opening such adjudications this Appellant cannot be brought to charges because present show cause notice makes allegation in respect of events of those three adjudications. Earlier ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lved in dialogue with Mamoor Khan and also the passenger Ms. Olga and party and made clearance of smuggled goods with his aid/abetment. The statement of Dil Agha established that this appellant was Khas Admi and for this reason his name appeared at page 103 of the order of adjudication. This appellant aided clearance of the goods of Ms. Olga and party to escape duty liability. Telephone contacts made by this appellant and contacts made to his telephones brought his abetment and that was also proved from collateral evidence. According to Revenue, analysis of the evidence from recorded statement of the passengers, statement of Dil Agha, Mamoor Khan and Bali, made clear that they have inculpated this appellant. This appellant was member of smuggling racket. 8.11 Ld. DR invited reference to page 13 of his written note dealing with corroborative evidence like Airlines manifest, manifest details, statement of Sri Zutshi and other organisers of smuggling and three previous orders of adjudication. He submitted that levying duty on small quantity of offending goods, huge quantity of goods appearing in Table 2 were deliberately allowed to escape duty. Such escapement proves abetment of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Anil Trivedi as apparent from para 131 and 132 of show cause notice. 9.2 Inviting attention to the statement recorded from Shri Zutshi appearing at page 42 of order of adjudication under para 79, he submitted that this appellant cannot be implicated merely because his name was uttered by Shri Zutshi. When two officers i.e. Shri Rao and Shri Trivedi did not state anything about exit of goods on 27-2-2000, statement of Shri Zutshi can not implicate the appellant. Retracted statement of Shri Zutshi is defence of this appellant. 9.3 Shri Kaushik drew attention to the adjudication order dated 27-2-2000 and submitted that this is the only date on which this appellant was brought to charge. When adjudication was made on that date, this appellant was never been made a party to that adjudication. This proves that there was no involvement of this appellant. The Authority did not find any charge against this appellant on that date. Accordingly, because this appellant merely forwarded proposal of adjudication to the learned Deputy Commissioner, his name should not have appeared in table 2 of order-in-original to impute him to charges. There were many officers on duty on 27-2-2000. But the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... all these aspects may be considered while disposing of appeal of the appellant. 9.8 In conclusion, Shri Kaushik replied to the Revenue s submission stating that learned Adjudicating Authority has given a clear finding in para 442 of the order of adjudication stating that this appellant has not contacted anybody by telephone and he has not left any evidence to implicate him. So also he submitted that the appellant had not contacted any passenger like Ms. Olga and her party to cause evasion. Even in pages 176 onwards of the Show Cause Notice, name of this appellant did not appear. All these, prove that this appellant was no way connected with the racket if any and entire finding against this appellant in adjudication was perverse. APPEAL CASE NO. C-19/2008 10.Arguments on behalf of the appellant R.N. Zutshi 10.1 Shri Bipin Garg, learned counsel appearing on behalf of the appellant Sri R. N. Zutshi submitted that there was seizure of some goods on 28-8-2000 from Ms. Olga at the airport. Basing on that seizure, Sri Zutshi was questioned alleging his involvement. He was summoned on 17-1-2001. On that day, he was examined from 11 A.M. to 11 P.M. and his statement was recorded u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n that day but has been penalized for no reason. 10.4 Similarly, the adjudication on 24-7-2000, 1-8-2000 and 21-8-2000 did not make allegation against this appellant. Adjudications were done on those days to levy duty on the goods alleged to have been brought by Ms. Olga and her party. Therefore, according to learned Counsel, when this appellant was not brought to charges on those days, he cannot be penalized subsequently on any extraneous considerations like phone calls and statement recorded from different persons. The statement of Dil Agha recorded on 23-5-01 as appearing in para 158 at page 99 of the impugned order was not attested by the Jail Superintendent and none of the signatures of Shri Dil Agha was proved to be his signature due to various defects appearing in the recorded statement. The statement of Dil Agha was recorded on 22-5-2000 in the presence of Shri U.K. Mishra and the appeal folder at page 4 does not prove that Dil Agha has signed that statement. His signature does not appear. There is no attestation of any recorded statement by the Jail Superintendent. Similarly all the pages beginning from page 6 to page 32 were not attested by the Jail Superintendent. Ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Jail before Jail Authority, she did not name the appellant. She even stated that she does not recall Mamoor Khan and Dilbar Khan of Afghanistan. 10.8 Learned Advocate further invited attention to para 2 of show cause notice to show that at page 1 thereof Ms. Olga was coming to India three years preceding the occurrence. Never in the last three years was this appellant brought to charge. This shows that he was neither directly or indirectly involved in the evasion. Revenue has not recorded any telephonic conversations to find out whether such conversations resulted with abetment or aiding/abetting. There was no evasion caused by this appellant even by telephone calls. 10.9 The RTI information obtained through letter dated 18-1-01 is reliable evidence which goes against Revenue. Revenue has explained how the baggage was checked. The explanation as to baggage checking with the accompanying documents does not approve that this appellant was directly involved in clearance of the alleged quantity appearing in Table 2 of the order of adjudication. When this appellant was not an agent to make the evasion possible and even to escape the goods, he cannot be brought to charges. 10.10 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of the charges in terms of the show cause notice dated 24-8-01, penalty of Rs. 2.5 lakhs was imposed by Adjudication order dated 27-9-07. Analysis of the evidence gathered against Sri R. N. Zutshi shows that he played his role contacting the offender passengers and the organisers of smuggling till the goods reached to the ultimate buyer in Delhi. His active involvement made the commitment of the offence possible on different dates. The evidence like phone calls, manifest details, his own statements, statement recorded from Dil Agha directing suggest that this appellant has abetted commitment of the offence to make the goods liable to confiscation under Section 111 of the Customs Act, 1962 for which penalty was imposable under Section 112(a) and (b) of said Act. This appellant was instrumental for escapement of sizeable quantity of offending goods evading customs duty for which those goods were liable to confiscation. This appellant was therefore guilty of aiding and abetting smuggling of textiles valued Rs. 17,78,785/- on 27-2-2000. Mamoor Khan, Shri T.R.K. Reddy, Shri V.K. Khurana and this appellant were the prime abettor to cause evasion. 10.15 The statement recorded from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ence gathered by Investigation. He was instrumental to cause evasion on all the aforesaid five days bringing the offenders to the fold of law. This appellant became instrumental to evasion being introduced by an Officer Shri T.R.K. Reddy and involved himself with smugglers on the aforesaid dates. From the day of his introduction by Shri Reddy to the smuggling racket, this appellant was in conversation with smugglers through his telephones as detailed in Table 2 by the Adjudicating Authority. 10.18 Ld. DR further submitted that active involvement of this appellant with the smuggling racket through telephone calls was not to find any informers but to cause evasion aiding smugglers to operate in India. The cell phone print out received from the Mobile operators proved that this appellant s telephone numbers found place therein showing his connection with the smuggling racket and his contacts resulted on evasion in all the aforesaid dates and five adjudications were outcome of his involvements. The first evasion made on 15-5-2000 brought link to the evasion made on 10-7-2000. Plethora of evidence gathered by Investigation, including cell phone print out, proved nexus of the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rded that, that shall not benefit this appellant. 10.23 Ld. DR further submitted that the statement recorded from Mamoor Khan and Dil Agha directly brought this appellant to charges. Plea of no cross examination of these two persons does not support case of the Appellant when circumstances proved evasion by escapement of offending goods for storing in the Guest House and finally sending the offending goods to Chandni Chowk Market through transporters who were also brought to charge. The plea of the appellant that they were not brought to proper sub-clause of Section 111 is of no value since the goods were as liable to confiscation. The arrivals of quantity of goods over and above the quantity adjudicated were bound to be liable for confiscation for which the appellant were to face the charge under Section 112(a) of the Act. Learned DR drew attention to the summary of statement of Shri Zutshi under paragraph 12 to 24 of his notes of arguments. In paragraph 25(b) he specifically highlighted that the letter of retraction is of no value. In para 26, he stated that various evidence which were submitted by the offender passengers proved that those goods were subject matter of smuggling ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Duty was imposed; redemption fine and penalty were also imposed. This is apparent from page 9 and 10 of the Compilation. Basing on this Adjudication, when the goods imported has suffered duty and penalty, there cannot be fresh Adjudication to impose penalty against the Appellant without re-opening the Adjudication completed under page 9 and 10 of the Compilation. He raised the question of law that Adjudication under page 9 and 10 appears to be under Section 122 of the Customs Act, 1962. Baggage coming to India through Custom is dealt by Section 77 and 78 of that Act. The case of confiscation and penalty for the passenger on 10-4-2000 having been dealt under Section 122, the Procedure of 122A was followed and Redemption fine was realized under Section 125. But the order does not indicate under which section duty was realized. If there are no ingredients of Section 28 present, there shall be no re-opening of earlier adjudication in terms of that Section. This Appellant could have been dealt in the proceeding when the goods were made liable to confiscation and penalty imposed on passenger who brought goods on 10-4-2000. Accordingly no penalty shall be imposed u/s 112(a) of Customs Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issions of Revenue 11.3 Ld. DR. Shri . submitted that chain of evidence exist showing that the appellant Shri Yash Pal paved the way for the smugglers through his involvement as depicted in a table under para-15 of his note. Evaluating the evidence, he submitted that this Appellant through telephone calls, joining hands with other offenders, paying no attention to the Baggage Rules and keeping quiet to inform to the higher Authorities about the smuggling racket, allowed big boras to escape through exit gate. As a result of which the offending goods could reach to the ultimate destination by the offending carriers. Statement recorded from various persons speaks against the Appellant bringing him to charge for his nexus and involvement in the smuggling. This Appellant had perfect knowledge about smuggling when paragraph-97 at page 62 of Adjudication order is read. The Appellant had perfectly identified the telephone numbers used. But he concealed/suppressed conversations made. He rather misguided the investigation saying that he was in contact with the informers. Such a saying by him is totally unbelievable because there is laid down procedure to record conversations with inform ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt, there cannot be a proceeding against the Appellant. His further submission was that when there was specific Baggage Rule in terms of Section 72 and 78 that was followed and the appellant has not committed any breach of law. APPEAL CASE NO. C-04/2008 12. Submisions on behalf of the appellant Sri T.R.K. Reddy 12.1 The appellant Shri T.R.K. Reddy represented by the learned Counsel Shri Asthana argued that on four days i.e. on 27-2-2000, 22-5-2000, 17-7-2000 and 24-7-2000, the appellant was alleged to have abetted smuggling of the quantity of goods mentioned in table 2 of the Adjudication order resulting in loss of revenue. For this allegation, the appellant has faced penalty of Rs. 10,00,000/- (Rupees Ten lakhs) and findings of the learned Adjudicating Authority for all these four days appeared in page 263, 280, 287 and 288 of the Adjudication order. This finding was made basing on telephone calls appearing in Table 2 of the Show Cause Notice alleging that certain quantity of goods escaped duty liability as appearing in page 312 of Adjudication Order. 12.2 Shri Asthana submitted that the adjudications made on the aforesaid four days not being reopened and that having reach ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce, acquiescence and knowledge of the appellant to the smuggling racket. (8) When the appellant came across illegal import of huge quantity of offending goods, frequently arriving in India, he remained silent to bring the same to the notice of higher authorities when 46 adjudications were made against similar passengers in due course. The passengers appearing in answer to question No. 21 are the example. The offending goods were dealt by counter No. 4, 5 6, where the appellant s responsibility was to know the oblique motive of the frequent travellers. (9) Answer to question No. 8, 22, 23, 24 and 25 when read together that leads to infer that there was nexus of the appellant with the offender passengers as well as Mamoor Khan. Answer to question No. 11 12 shows perfect knowledge of the appellant as to the excess quantity being imported from time to time and frequent arrival of Ms. Olga was within his knowledge. (10) In answer to question No. 13 the appellant stated that he has not checked documents of Ms. Olga on different occasions. (11) Answer to question No. 16 shows offending goods imported by the offenders. Those were prohibited goods under EXIM policy. B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mplicate the appellants when there was neither live-link nor cogent evidence against the appellant. This appellant was not cause for escapement of alleged quantities from the notice of the customs. APPEAL CASE NO. C- 48/2008 13. Submissions on behalf of the appellant Shri V.K. Khurana 13.1 Learned Counsel Shri Prem Ranjan appearing on behalf of the appellant Shri V.K. Khurana in Appeal Case No. C/48/2008 invited attention to the statements dated 22-5-2001, 23-5-2001, 11-7-2001 and 12-7-2001 and 25-7-2001 recorded from Dil Agha. Placing these statements, his arguments were as under:- (1) In the statement dated 22-5-2001 and 23-5-2001, he did not whisper name of this appellant. But he whispered his name on 11-7-2001 and 12-7-2001; (2) Dil Agha s statement by no means implicates or brings this appellant to charge. This appellant in what way connected with the smuggling is also not been stated in the statement. 13.2Ld. Counsel submitted that the diary which was subject matter of the statement dated 11-7-2001 was not the material piece of evidence when that was not subject matter of examination either on 22-5-2001 or 23-5-2001 i.e. prior to 11-7-2001. On 28-8-2000 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing can be used against him. He had not abated commitment of offence. No penalty is therefore imposable. He primarily argued that when the facts remain untrue against the appellant and no cogent evidence exists against the appellant, the appellant is free from charge. Submissions of Revenue 13.8 Shri Sumit Kumar, ld. DR submitted that Shri V.K. Khurana in appeal case No. C/48/08, was intimately connected with the offence committed and following the ratio laid down Hon ble Supreme Court in the case of Costao Fernandes v. State reported in 1996 (82) E.L.T. 433 (S.C.). This appellant as an Officer of Customs defrauded Revenue. Circumstantial evidence was so weighty that direct eye witness was uncalled for to hold involvement of this appellant. Entire chain of evidence dealt in different paragraphs of the Adjudication order unambiguously brings this appellant to charge. 13.9 Learned D.R. further submitted that the appellant was aware of the customs rules and law as depicted in para 10 and page 12 of the notes filed. The appellant was not an innocent. He had perfect knowledge of the frequent traveling offenders. When this officer was on duty in the month of July and most particula ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion Order to submit that Ld. adjudicating authority found that the telephone calls appearing in the print out received from the telephone providers, proved connection of the appellant with Dil Agha and Olga. (4) Event of 31-7-2000 appearing in para 515 of Adjudication order at page 291 anc para 517 shows that Ms. Olga K was frequent traveler within four days of 27-7-2000 to 31-7-2000. On all these days, this appellant was in contact with her from the mobile phone and his residential phones. So also, other offenders were in touch with this appellant. Adjudicating authority has clearly brought out that telephones of this appellant was actively engaged in contact with Dil Agha who arrived at the Airport to take possession of the goods brought by the offender Ms. Olga. (5) Event of 1-8-2000 appearing in para 522 at page 293 of Adjudication order shows that Ms. Olga, soon after delivery of the goods brought by her on 31-7-2000 again returned back to bring smuggled goods again on 1-8-2000. This travel was made within few hours. She was waiting for clearance of goods on all the days till this appellant arrived at the Airport to join in his duty and to clear goods granting undue f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evidence to implicate this appellant. (2) This appellant has discharged his duties according to law. (3) Goods that have reached air port on the respective dates have met scrutiny by higher authorities apart from involvement of this appellant in the adjudication process. (4) Telephone calls ipso facto does not speak against the appellant. (5) No record of telephonic conversation made case of revenue fatal. (6) Location of telephone at Airport through signals shown by mobile operators cannot prove use of telephone by the appellant nor bring this appellant to charges when he had not used the alleged mobile phone. APPEAL CASE NO. C-89/2008 15.Argument on behalf of the appellant Pradeep Rana 15.1The appellant Pradeep Rana is also one of the Officers who were brought to charges for the events of 11-8-2000, 14-8-2000 and 18-8-2000. Penalty of Rs. 2.00 Lakhs, 1.75 Lakhs and 0.75 Lakhs respectively were imposed under section 112(a) of the Customs Act 1962 being an abettor to the confiscation of goods illegally imported by Ms. Olga and her party, while he was on duty on those days as ACO (Baggage Officer). 15.2 Ld. Counsel Shri Vipin Garg appearing on b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ara 161 at page 103 of the Adjudication order although was claimed by Revenue to have been signed by Dil Agha, Revenue has failed to establish his identity without granting opportunity of cross-examination. Accordingly Revenue cannot claim that there was any statement recorded from Dil Agha on 11-7-2001 and that was also signed by him. No diary at all existed and had that been existed in the Dil Agha s house that would have been recovered and seized when there was a police raid along with customs officers to his house. 15.6 Reading the statement of Dil Agha recorded on 12-7-2001 appearing at page 105 of the Adjudication order in para 162, Shri Garg submitted that this appellant is no way been exposed by Dil Agha to be vital link to the offence if any commtted by any person. He submitted that statement (para 167 at page 163 of Adjudication order) recorded from the appellant on 25-7-01 should not drag him to charge in absence of any corroborative evidence. Revenue did not allow cross-examination on the ground that the adjudication process shall be delayed. Accordingly natural justice was violated. 15.7 Shri Garg further submitted that when Ms. Olga was found to be main offender b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... submitted that relevant facts of the matters appear in terms of para 1 to 6 of the note and analysis of evidence bringing the facts to the tests of evidence in terms of para 7 to 13 thereof. The statements recorded from Dil Agha and Sri Zutshi, brought the appelant to the charge in view of his nexus, active participation and live link to the offence. To submit so, he relied on the decision of the Hon ble Supreme Court in the case of Gouda Vanuatu Reddy v. State of Andhra Pradesh reported in 2004 (13) ILD 715 (SC) So also he relied judgment of the Hon ble Supreme Court in the case of Joaquin Alamo vs. Commissioner of Customs, GAO reported in 2005 (188) E.L.T. 231 (Trib.-Mumbai) to submit that when the offender has left series of evidence against him through various means like phone call, contacts with the offenders, accomplices, response of the other side through telephones, print outs collected from Cell Operators, movements of goods through the carrier and ultimate sale of the offending goods, this appellant cannot escape charge of breach of law. Had this appellant not been involved in the offence after 12th August 2009, he would have at least brought the smuggling activity to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that he does not know them. The offenders were frequent flyers bringing offending goods to this country and the appellant along with others were the abettor to cause escapement of the offending goods from the notice and scrutiny of customs. Abatement is an offence which can be appreciated from the judgment of Goura Venkata Reddy (supra) and all the elements of abetment lay down in that judgment being law of the land brought this appellant to charge. 15.13 Ld. DR further submitted that when this appellant was not on duty, he was called by smugglers to aid evasion in collusion with other officers who were in duty. While he was on duty he had permitted movement of the offending goods without levy of duty in connivance with others. Although the appellant submitted that huge quantity of goods can not escape when there were so many customs barriers that was allowed to happen with the close connection and abatements with others since he was aware that the offending passengers were frequently bringing the goods and that was being allowed to escape gate of Airport. 15.14 Ld. DR further submitted that the goods in question were subjected to laboratory test and according to the classifica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing and also the diary which was used against some of the appellants and said to have been seized, was also not produced to the Tribunal for examination. Therefore, any telephone number contained in the diary shall not be basis to make allegation against the appellant. The appellant was only concerned with the quantity and the description of the goods required to be placed for adjudication before higher authority on the respective dates. He was no way concerned with any other description or quantity alleged to have escaped on all the 3 days. When the Supdt. under whom this appellant was discharging his duty, was not examined by authorities, nothing can be held against this appellant since his higher authority had no complain of escapement of any quantity of goods from the notice of customs on all the three days. Allegation of escapement of huge quantity is unbelievable for the reason that those are bulk in nature and that cannot escape at all notice of the gate officers. When the gate officers did not establish escapement of such quantity, nothing can be held against this appellant. Following instruction of the client, ld. Counsel submitted that there was no test report of the good ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt had no scope to know whether there was any other excess quantity brought by the passenger Merculova on 24-7-2000. 16.4 In view of the evidence brought by Shri B.C. Gogna to the extent aforesaid, he was also exoneratec from the authorities. This ultimately proves that this appellant was no way connected with any other alleged quantity of 1500 kgs. Accordingly page 11 of the compilation which is the letter of the airlines does not prove that any other huge quantity of excess baggage was brought by passenger Ms. Merkulova on 27-2-2000. The reporting airline was also not called for cross examination when certain materials relating to export through Airlines were used against appellant. Ld. Advocate also submitted that statement of two gate officers at page 30 and 39 of the compilation filed by him does not disclose name of this appellant for which there was no basis to proceed against the appellant. He also submitted that the gate officers did not find huge quantity of 1500 kgs of the good said to have been imported by Ms. Merkulova. Accordingly, the charge that was leveled under para 184 of Adjudication order relying on the statement of one of the other appellant Shri Zutshi is u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a Silk by Afghan persons was within the knowledge of the appellants. They were making quick profits selling the smuggled goods. In answer to question No. 12 in recorded statements dated 9-1-2001; it came to light of Investigation that dealing of China Silk goods was within the knowledge of the trader appellants. Revenue proved involvement of these appellants from the statement of Dil Agha appearing at page 103 of the Adjudication order. Evidence of Wali Abdul Qahar and Dil Agha proved against the traders. He confessed that he was in connection with other appellants in the deal and was in contact with them including Afghan person. He also confessed dealing of the goods in question, proved manner of delivery thereof, disclosed source of goods, and proved identity of carrier of the goods, identity of foreign nationals who were bringing goods reached Chandni Chowk. Acquaintance of this appellant with Sanjeev Jain and others is without any conflict of evidence when they all were named by Dil Agha in para 160 of Adjudication order. 16.9 learned DR Shri Sumit Kumar further submitted that although statement was not recorded from Shri Sanjeev Jain, his name was uttered by Dil Agha as is e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... learance keeping the Preventive Wing completely out of the scope of investigation making sketchy, superficial, deliberately flawed and incomplete adjudication proposals in SCN. 17.2 As has been stated at the very out set in this order that entire adjudication comprised event of 28-8-2000 and events prior to that data, we found Revenue had cogent evidence for seizure of the offending goods illegally imported on 28-8-2000 and action of the Adjudicating Authority for the adjudication of the matter of that day did not appear to us to be unreasonable for which appeal against some of Respondent Officers by Revenue for the event of 28-08-2000 sustains and that order also sustains in so far as quantification of the offending goods is concerned which became rational basis for adjudication of events prior to 28-8-2000. We did not find the process of quantification to be erroneous. So also the evidence relied in the adjudication of 28-08-2000 were found to be cogent and credible lending support to the adjudication in respect of events prior to 28-08-2000. Further, so far as appeals of Revenue against an Airline and 4 (four) other conduits of smuggling racket are concerned; those appeals wer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Between 3-2-2000 to 28-8-2000 Nazira 2 occasions 30th August, 2000 Dil Aga 10 Occasions 1-9-2000 onwards. 18.1 Although Shri Zutshi denied the allegations made against him, he could not rule out his contacts with smuggling racket and his conscious knowledge about arrival of smuggled goods and clearance thereof with his nexus and connivance surfaced from time to time repeatedly. Even his retraction failed to spell out truth. Instead of addressing his retraction to the DRI, he sent that to a different Authority who was strange to the matter at the relevant point of time and acknowledgement of receipt of such retraction was found to have been fabricated. His association with the members of the smuggling racket could not be dissociated. Smuggling perpetuatec for long time and the offending goods could escape customs scrutiny, resulting in loss of revenue due to close connection of this appellant with smuggling racket. He was found to be in frequent and repeated contacts with the offending passengers who were bringing smuggled goods and also his involvement with the gang operating such racket could not be ruled out. Ld. Authority in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Nandal used decide the consideration for smooth clearance of bags. During July 2000 rotation, Sri Vinod Kain from Preventive, Sri Kanwa Suman and Sri T. R. K. Reddy, Protocol Officers and Anil Madan, Superintendent use to talk each other and decide about the clearance of goods of Mamoor Khan. 18.4 In answer to Question No. 6, Sri Zutshi stated about mode of clearance of offending goods with the involvement of Customs Officers. He also narrated about preparation of adjudication proposals for lower quantity than the goods arrived at the Airport. Even collection of money by Sri V. S. Teotia, Yashpal and Vinod Kumar Kain from Mamoor Khan was stated by Sri Zutshi. He also stated that 60% of the collection used to go to Preventive and rest used to be shared by baggage Officers. The distribution for Officers and Baggage staff was used to be done by Sri D. S. Nandal, Superintendent Sri T. R. K. Reddy and V. K. Khurana and Ajay Yadav Superintendent or R. K. Dacolia and A. R. Varshney or Anil Madan, Superintendent and Kanwal Suman and T. R. K. Reddy in different shifts. 18.5 It was further stated by Sri Zutshi that during Oct 1999 rotation, Sri Subhash and J. A. Khan used to distribute t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reported in 2000 (120) E.L.T. 280 (S.C.), the court has to test whether the inculpating portions were made voluntarily or whether it is vitiated on account of any of the premises envisaged in Section 24 of the Evidence Act. Nothing could be demonstrated to impeach the statements recorded. 18.9 Though it cannot be denied that the right of cross-examination in any quasi-judicial proceeding is a valuable right given to the noticee as these proceedings may have adverse consequences, at the same time under certain circumstances, this right of cross-examination can be taken away. Hon ble High Court of Bombay while dealing with the similar issue in the case of Gyan Chand Sant Lal Jain v. UOI, reported in 2001 (136) E.L.T. 9 (Bom.) and taking into consideration the applicability of concept of principles of natural justice in that regard quoted para 76 of Halsbury s Law of England, Vol. I (4th Edition) which reads thus :- Natural justice does not impose on administrative and domestic tribunals a duty to observe all the technical rules of evidence applicable to proceedings before courts of law. Members of tribunals may be entitled to draw on their specialized or local knowledge of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nces in connection with the contraband goods, they can bring about a situation of failure of natural justice by a joint strategic efforts such co-noticees by each one refusing to be cross-examined by resorting to Article 20(3) of the Constitution and simultaneously claiming cross-examination of the other co-noticees. It is not a matter of right for any assessee to contend that the statements of witnesses should be discarded. 18.11 Bearing in mind the law laid down by the Apex Court and the appellants having been put to notice through SCN in the course of adjudication, there appears no force on the submissions of appellants that they were deprived of cross examination. It is well-settled that the effect of an alleged admission depends upon the circumstances in which it was made. An admission is the best evidence that an opposing party can rely upon, and though not conclusive, is decisive of the matter, unless successfully withdrawn or proved erroneous. This is so because an admission by a party is substantive evidence of the fact admitted, and admissions duly proved are admissible evidence irrespective whether the party making them appeared in the witness box or not and whether t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Airport during the relevant period in different shifts were touched by such telephones. The smuggling racket brought certain Customs Officers to charge under law by such contacts. However, it was held in adjudication that exchange of telephone calls between certain Customs Officers and smuggling racket was not proof to hold them guilty when Revenue failed to discharge burden of proof to bring them to the grave of the charges without recording their conversations for which they were made charge free in adjudication. They were held to have not colluded nor abetted or committed fraud against Revenue. It was also held by the Adjudicating Authority that the Officers those who were made charge free, there were no incriminating evidence against them even from the statement of Shri R.N. Zutshi an Officer who was charged in adjudication. So also the conclusion of the authority was that uncorroborative statement of Shri R.N. Zutshi against them entitled them to be charge free. Revenue being aggrieved by such finding came in appeal against 14 officers. 19.2 In para 28A of the adjudication order, frequent contacts made by Ms. Olga Kozireva through cell phones on different occasions to differ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that was not sufficient evidence to penalise them and they were to be made charge free. The Authority also held that although certain contacts were made by the Officers with Ms. Olga on certain dates, on those dates, she was not passenger bringing the smuggled goods. 19.5 Having noticed cogent and credible evidence came to record, but inference drawn by the Adjudicating Authority was not in consonance with rule of prudence in respect of 14 Respondent Officers, we made effort to test the issues on the touch stone of principles of preponderance of probability and standard of proof in following paragraphs when certain Respondent Officers were not named by Mr. Zutshi but there were evidence against them in the form of telephonic contacts with smuggling racket for which Adjudicating Commissioner himself has observed that there were no satisfactory explanation by them. 19.6 Department is not required to prove its case with mathematical precision to a demonstrable degree; for, in all human affairs absolute certainty is a myth, and as Prof. Brett felicitously puts it- all exactness is a fake . El Dorado of absolute Proof being unattainable, the law, accepts for it, probability as a wo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st of human probabilities. Human minds may differ as to reliability of a piece of evidence. But in that sphere the decision of the final fact finding Authority is made conclusive by law. The normal rule which governs civil proceedings is that a fact can be said to be established if it is proved by a preponderance of probabilities. A fact is said to be proved when the court either believes it to exist or considers its existence so probable that a prudent man ought, under the circumstances of the particular case to act upon the supposition that it exists. The belief regarding the existence of a fact may thus be founded on a balance of probabilities. A prudent man faced with conflicting probabilities concerning a fact situation will act on the supposition that the fact exists, if on weighing the various probabilities he finds that the preponderance is in favour of the existence of the particular fact. As a prudent man, so the court applies this test for finding whether a fact in issue can be said to be proved. When learned Adjudicating Authority followed principles of preponderance of probability in other cases, the case of 14 respondent officers is not an exception. 19.9 Revenue s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ized system of jurisprudence. It is a concept descriptive of human conduct either by letter or words, which includes the other person or authority to take a definite determinative stand as a response to the conduct of the former either by words or letter. It has been held by Apex Court in the case of Commissioner of Customs, Kandla v. Essar Oil Ltd. - 2004 (172) E.L.T. 433 (S.C.) that by fraud is meant an intention to deceive; whether it is from any expectation of advantage to the party himself or from the ill will towards the other is immaterial. The expression fraud involves two elements, deceit and injury to the deceived. Undue advantage obtained by the deceiver, will almost always call loss or detriment to the deceived. Similarly a fraud is an act of deliberate deception with the design of securing something by taking unfair advantage of another. It is a deception in order to gain by another s loss. It is a cheating intended to get an advantage. (See S.P. Changalvaraya Naidu v. Jagannath [1994 (1) SCC 1]. 19.12 In a leading English case i.e. Derry and Ors. v. Peek (1886-90) All ER 1 what constitutes fraud was described thus: (All ER p. 22 B-C) fraud is proved when i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pellant used to negotiate and decide the money to be charged from Mamoor Khan. But no evidence was led by Revenue in this score. There were 95 calls exchanged between this appellant and Mamoor Khan during the period from 1-10-99 to 31-3-2000. One call was exchanged between Dil Aga and the appellant and 7 calls between the appellant and Ms. Shalo between 16-3-2000 to 2-6-2000 for the event of 10th April 2000. This appellant was in dialogue with Mamoor Khan six times between 10.26 A.M. to 11.17 A.M. while the Flight bringing the offending goods arrived before 10 A.M. Although the appellant defended submitting that there was no statement made against him by the passenger Ms. Shalo and he did not talk with Mamoor Khan or Dil Aga and statement of Dil Aga was not corroborated by any independent evidence, all such plea were discarded. Ld. Adjudicating Authority considering plea of the appellant came to the conclusion that since Shri Zutshi named this appellant in his statement and his conversation with the abve said person could not be ruled out, he was liable to be brought to charge and was liable to face the penal consequence under section 112 of the Customs Act 1962. 20.1 So far as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he fact that Ms. Olga K, who imported silk textiles of more than Rs. 50 lakhs value involving Customs duty of over Rs. 30 lakhs had no money to pay such duty. There was documentary evidence to show that conversations were made between Shri Khurana through his Mobile No. 9811028228 with Dil Agha, and the offender passengers Nazira I. as well as Olga K. Though Shri Khurana disowned ownership of the mobile number in question, that was not acceptable to Adjudicating Authority as narrated in para 440 of the impugned order. Circumstantial evidences proved his active role with Ms. Olga K, Dil Agha and Nazira I, and they had his prior consent to import the offending goods and he perpetuated scandalous clearance without proper declaration and payment of legitimate duty. Accordingly, learned Adjudicating Authority held that Shri Khurana was liable to penal action under Section 112A of Customs Act, 1962 for his role in abetting and colluding with Olga K., Nazira I. and Dil Agha. No evidence was led to contradict above findings except raising doubts on technicalities. Therefore we do not find substance in the defence of this appellant for which his appeal is dismissed. Finding on the appella ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mains unexplained by the appellant for which he was liable to question. Nothing is noticeable from record to make this appellant charge free for no evidence coming to his rescue. When Shri Zutshi uttered name of this appellant and that too graviously that was sufficient evidence to penalise the appellant. The appellant s consistent contacts as aforesaid made him liable to penal action. Accordingly there is no disagreement to the decision of adjudication authority against this appellant. Consequently appeal of this appellant is dismissed. Finding on the appellant Shri Ajay Yadav 23. Shri Ajay Yadav was brought to charge in terms of para 441 at page 268 of the Adjudication Order in respect of the event of 27th Feb., 2000 and on the basis of statement of Shri R.N. Zutshi made on 17th Jan., 2001 and adjudication order No. 17730 dated 27-2-2000. Shri Zutshi stated that this appellant used to negotiate and decide the money to be charged from Mamoor Khan for distribution among baggage dealing officers. But there was no evidence led by Revenue for this except statement of Sri Zutshi about negotiation of consideration relied upon. There was no serious allegation against this appellant a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment, it was also found on 17-07-2000 that excess baggage brought by Ms. Olga K. by Flight No. K2 - 455 on that date was cleared by this appellant and such clearance was corroborated by undesirable involvement of this appellant in telephone contacts with Mamoor Khan from his Cell Phone before and after arrival of the flight as has been recorded by the Adjudicating Authority in Para 503 of the Adjudication order at Page 288 thereof. Similarly in respect of event of 24-07-2000 when this appellant was on duty he was telephonically in contact with Dil Agha for illegal clearance of commercial baggage of Ms. Merkulova L. This comes out from Para 505 of the Adjudication order at Page 289 thereof. 24.3 When the appellant was in nexus with smuggling racket to facilitate illegal clearance of the offending goods in the manner as come out above from the impugned order and Testimony of Sri Zutshi was corroborated by the modus operandi adopted by this appellant, this appellant submitted himself to charges which remained uncontroverted. Thus appeal of this appellant also fails and that is dismissed. Finding on the Appellant Sri Yash Pal 25. This appellant was brought to charge for the event ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d not be ruled out. Consequently, his appeal fails and that is dismissed. Finding on the Appellant Sri Anil Madan 26. In respect of the clearance of the smuggled goods made on 24-7-2000, Sri Anil Madan was brought to charge for suppression of quantity of the offending goods for adjudication as a result of which the suppressed quantity escaped duty and thereby duty evasion was caused. Ld. Adjudicating Authority in para 509 of the Adjudication order at Page 290 noticed that when this appellant was on duty on the above date, he placed adjudication proposal for a lower quantity than the actual quantity brought by the offender passenger Ms. Merculova. So also Sri Zutshi described him to be distributor of illegal consideration realised from smuggling racket to facilitate clearance of higher quantity of goods causing duty evasion. The evidence led by Revenue against the Appellant remained uncontroverted and that proved Appellant s nexus with smuggling racket aiding escapement of offending goods from appropriate adjudication. Accordingly his appeal without merit is dismissed. 26.1 Revenue came in appeal against this appellant for the event of 1-8-2000. But no evidence was led by Re ..... X X X X Extracts X X X X X X X X Extracts X X X X
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